Waiting in the Wings: A New Leader at the Immigration Helm

Waiting in the Wings: A New Leader at the Immigration Helm

The dysfunctional immigration world continues to spin dangerously out of control.

Do-nothing House Republicans (and five pusillanimous Democrats) commit political seppuku with the passage of the ENFORCE Act -- a going-nowhere bill which would authorize civil suits against the President to dissuade him from doing something to husband scarce prosecutorial resources and ameliorate the harsh consequences of deportation for noncriminal violators of immigration regulations. As Rep. Luis Gutiérrez reminds us, prominent Republican House leaders advocated for the exercise of presidential authority and prosecutorial discretion before they turned against it -- the only difference being that this time they cannot suffer the insufferable, namely, that it be used by President Obama.

Provocateur Ann Coulter spews anti-immigration vitriol at the gathering known as CPAC, the Conservative Political Action Conference, as she attacked “MSNBC, where they are celebrating the browning of America," compared immigration reform to “rape,” claimed that immigrants would upend the Social Security and Medicare programs, and espoused vigilantism (“If you pass amnesty, that's it. It's over, and then we organize the death squads for the people who wrecked America”).

All this time, U.S. Citizenship and Immigration Services (USCIS) has continued since December to make do without a permanent leader. Following the departure of Alejandro Mayorkas, the erstwhile and accomplished USCIS Director, appointed to serve as Deputy Secretary of Homeland Security, an acting director, career officer Lori Scialabba, has served as its interim leader and caretaker. While this beleaguered agency with a huge and hugely important mission and long-endemic problems has shown spunk and commendable results in some areas, such as public engagement, a new online "e-Request" form for simple-problem resolution, and the EB-5 immigrant-investor domain, growing problems only proliferate.

Mr. Rodriguez, whose "grandparents fled anti-Semitism and poverty in Turkey and Poland in the late teens and early 20’s to come to Cuba where [his] parents were born," only later to seek refuge from the Castro regime in the U.S., has offered tantalizing insights into how, if approved by the Senate, he might tackle the daunting job of USCIS Director, especially in reply to Sen. Grassley's queries.

In written answers to various Senators' questions, he reaffirms his belief in the proper use of prosecutorial discretion and the need to protect internal agency whistleblowers from retaliation, agrees to meet with union representatives of USCIS employees, expresses support for recent USCIS reforms of the EB-5 program and states that in limited circumstances it is incumbent upon the USCIS Director to intervene in a pending case when the "outcome of adjudication is wrong, or when adjudication may present a legal, factual, or policy issue of broad application."

Unfortunately, the Senators' written questions to Mr. Rodriguez ignored many problems and challenges facing USCIS.

One of the most pressing is the L-1 intracompany-transferee visa category and the ever mounting rates of denials by USCIS of employer petitions seeking L-1B “specialized-knowledge” workers. As reported in the latest USCIS dataset (released through a Freedom of Immigration Act request by the American Immigration Lawyers Association), although as recently as FY 2006 the agency denied only 6% of L-1B petitions, rejections for lack of specialized knowledge jumped to 34% in FY 2013, after accelerating to 30% in FY 2012 – a five-fold increase in the denial rate even though the agency has not published any new regulation changing the adjudication standard. In a press release accompanying its recent report ("“L-1 Denial Rates for High Skill Foreign Nationals Continue to Increase”), the National Foundation for American Policy (NFAP) observed:

Denial rates for L-1B petitions increased in FY 2012 and FY 2013 – after U.S. Citizenship and Immigration Services officials pledged in early 2012 to develop new proposed guidance, for public review and comment, in order to update and modernize the understanding of the specialized knowledge definition. The new proposed guidance never materialized and, in the eyes of employers and their attorneys, the situation has continued to provide inconsistent decision-making and the high levels of denials and Requests for Evidence have continued in the past two years.

The NFAP also noted an alarming nationality-based trend in L-1B denials adversely affecting Indian citizens (a pattern also observed and critiqued in this blog):

Based on an NFAP examination of data for FY 2011 and earlier, it appears much of the increase in the denial rate has been focused on Indian nationals. U.S. Citizenship and Immigration Services denied more new L-1B petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008). In FY 2009, the denial rate of new L-1B petitions for Indians increased to 22.5 percent even though there had been no change in the regulations. In contrast, for Canada, the UK, China and other countries the denial rate in FY 2009 ranged from 2.9 to 5.9 percent for new L-1B petitions. USCIS did not release country-specific data for FY 2012 and FY 2013 but interviews with employers and attorneys indicate the problems with receiving approvals for L-1B petitions involving Indian nationals have continued.

Only a permanent and reform-minded USCIS Director, ushered forcefully through the Senate, even if Democrats are forced to deploy the "Nuclear Option," would have the clout to address this disturbing trend in lawless adjudication. Only an outsider with legal background sufficient to master the complexities of the Immigration and Nationality Act and a history of facing and overcoming entrenched bureaucratic lethargy and resistance, could fix the many daunting challenges still unaddressed at USCIS. Let's hope that Mr. Rodriguez is just such an individual and that his nomination is swiftly approved.

it would be impossible for me to predict what action I would take with respect to a policy like DACA prior to my confirmation.

That is technically true: He would take whatever position the Obama administration wants at that time but we cannot know with 100% certainty what that will be since it's in the future.

common sense, comprehensive immigration reform.

Followed by word-for-word Obama administration immigration talking points. But did I miss "a nation of laws and a nation of immigrants"? That would have been classic if he literally parroted the entire Obama stump speech but he missed a cliche.

Given the complexity of immigration law and policy, and the unique facts of each case, I do not believe that this question can be answered with a �yes� or �no�.

He gave that word-for-word non-answer a mere seven times to straightforward questions.

As a law enforcement official myself, I do not condone violation of the law.

LOL. That's not enough for him. He thinks violation of immigration law should be rewarded with permanent residency status and a "pathway to citizenship."

If confirmed as USCIS director, I believe my mission to be to extend a warm hand of welcome to those entitled to be in the United States, and to make sure that those who are not entitled to admission to the United States, particularly those who mean harm to the American people, do not get to enter or remain here.

Dude, you do realize that S. 744 which you keep saying that you support allows those who are not entitled to be here to remain in the country permanently. So this answer is pure BS.

I could go on and he is not about to honestly or directly answer any hard questions but note that he has ties to Thomas Perez and, like Perez, CASA de Maryland. That pretty much says it all: He's not just a lackey who will carry out the administration's political agenda but a true open border activist who might even push to make that agenda even more radical.